After an 11 week trial, a federal judge in San Francisco ruled that Walgreens “substantially contributed” to San Francisco’s opioid crisis by ignoring red flags and continuing to fill prescriptions for drugs. U.S. District Judge Charles Breyer wrote in a 112-page August 10 ruling that the “evidence at trial established that from 2006 to 2020, Walgreens pharmacies in San Francisco dispensed hundreds of thousands of red flag opioid prescriptions without performing adequate due diligence,“
This case is part of a nationwide multidistrict litigation stemming from the ongoing opioid epidemic. Cities, counties, and states across the country have filed claims against manufacturers, distributors, and dispensers of prescription opioids. While the facts of each case vary, the claims center on the contention that each defendant has contributed to the opioid epidemic that has engulfed the country.
In this case, the People of the State of California, acting through the San Francisco City Attorney, filed claims against dozens of defendants related to the opioid epidemic in San Francisco. By the time of trial, only four defendants remained.
The Court held a bench trial from April 25, 2022 to June 27, 2022. Closing argument was held from July 12 to July 13, 2022. By the close of trial, Walgreens was the sole remaining defendant. The other three defendants settled their claims. At trial, the issue was a single public nuisance claim against Walgreens.
The evidence showed that San Francisco has been battling an opioid epidemic, defined by high rates of opioid abuse and addiction throughout the city, for over two decades. The number of people in the city abusing opioids has substantially accelerated in recent years. Since 2016, opioid overdoses have been the leading cause of death among the homeless in San Francisco. In 2019, the last year of available data, an estimated 40,958 city residents out of a total population of approximately 865,000 suffered opioid addiction. That same year, approximately 1,939 people in San Francisco overdosed on opioids, an average of 5.3 opioid overdoses per day.
And the evidence showed that prescription opioids have been at the heart of San Francisco’s ongoing opioid epidemic, which has unfolded in three different waves. The first wave started in the late 1990s and early 2000s when opioid manufacturers began to aggressively promote opioids as safe and effective for treating a broad range of medical conditions.
The second wave began in the early 2010s, when medical professionals began to reduce opioid prescribing based on the recognition that opioids are not a safe and effective form of treatment for many medical conditions. In the second wave, many people who were addicted to prescription opioids but no longer readily able to obtain them from doctors shifted to heroin use.
The third wave started around 2015, when inexpensive and highly potent fentanyl became widely available across a city already struggling with opioid addiction.
The opinion noted that “Walgreens is the largest retail pharmacy chain in San Francisco. Between 2006 and 2020, Walgreens distributed and dispensed over one hundred million prescription opioid pills in the city.” The Controlled Substances Act (“CSA”) regulations require distributors to implement and maintain a system for identifying suspicious orders of opioids. Suspicious orders of opioids must be halted and reported to the DEA.
Fulfilling this duty requires Walgreens pharmacies to resolve “red flags” associated with a prescription before dispensing it. Red flags are well-established warning signs that raise questions about the legitimacy of a prescription.
The evidence at trial established that Walgreens violated this regulatory duty for several years. It did not maintain an effective system for identifying suspicious orders. It shipped thousands of suspicious orders to its pharmacies without investigation.
Judge Breyer wrote “Tens of thousands of these prescriptions were written by doctors with suspect prescribing patterns. The evidence showed that Walgreens did not provide its pharmacists with sufficient time, staffing, or resources to perform due diligence on these prescriptions. Pharmacists experienced constant pressure to fill prescriptions as quickly as possible, and a shortage of resources to review them before dispensing.”
In 2012, the DEA shut down one of Walgreens’ three controlled substance distribution centers because the distribution center’s failure to monitor for suspicious opioid orders posed an imminent threat of harm to public health and safety.
The court concluded that “As a result of Walgreens’ fifteen-year failure to perform adequate due diligence, Plaintiff proved that it is more likely than not that Walgreens pharmacies dispensed large volumes of medically illegitimate opioid prescriptions that were diverted for illicit use and that substantially contributed to the opioid epidemic in San Francisco.“
A subsequent trial will determine the extent to which Walgreens must abate the public nuisance that it helped to create.